Marketing Issues

1. Discount Programs - As previously described, offering any sort of consideration to another person to increase patient volume may constitute unlawful fee-splitting or offering of kickbacks. “Discount” and “refer a friend” programs may also be considered unlawful under these applicable laws. The use of discount programs may be subject to additional legal restrictions,⁵⁰ or violate the terms of an agreement with an insurance company that a dentist is participating with.⁵¹ Dentists should ensure that any discount or “refer a friend” program that they are using to promote their practice complies with federal and state law, as well their participating insurance company contracts.

2. Marketing Calls, Texts and E-Mails
a. There are a variety of new technologies available to dental practice to help reach current and new patients. However, there are a number of laws designed to protect consumers from abusive marketing tactics.

b. Companies that contact consumers via telephone, text, or fax must comply with the Telephone Consumer Protection Act of 1991 (the “TCPA”),⁵² or risk regulatory scrutiny and the threat of class action lawsuits. Generally, a practice that uses telephone calls, text messages, or faxes for marketing purposes should only do so in compliance with the TCPA's consent, disclosure, identification, abandonment, and opt-out requirements. Any dental practice utilizing calls, texts, and faxes for marketing should: (1) Provide clear and conspicuous TCPA consent disclosures, including the right to opt-out; (2) Obtain consent in writing or electronically; (3) Retain all documentation of consent; (4) Ensure that any calls made are closely related to the purpose for which the consent was provided; and (5) Track and document all opt-outs, no matter how such opt-out was communicated.⁵³ If the dental practice uses a third party service to contact consumers on its behalf, the service company should represent that it complies with the TCPA (and similar legal requirements) and will indemnify the dentist for violations of the law.

i. Case Study: A dentist was adjudicated to be liable for treble damages by the Ohio Supreme Court for two violations of the TCPA. First, the dentist initiated an automated call to an individual with a prerecorded message soliciting business for the dentist’s practice without the individual’s prior express consent. After the call, the dentist failed to respond to a request by the individual for a copy of the dentist’s "Do Not Call Policy," constituting another violation of the TCPA.⁵⁴

c. E-Mails are governed by another law, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”). The CAN-SPAM Act applies to emails that have a primary purpose of commercial advertisement or promotion of a commercial product or service.⁵⁵ Commercial e-mail messages must generally comply with the following requirements: (1) No false or misleading header information; (2) No deceptive subject lines; (3) Include an opt-out mechanism; (4) Include the sender's valid physical postal address ; and (5) Identify the message as an advertisement or solicitation.⁵⁶

d. Many states have adopted their owning telemarketing regulations, so it is important that any dentist familiarize themselves with any law that applies to their own practice.⁵⁷

3. Deceptive Advertising - Many state boards of dentistry have adopted regulations that prohibit misleading or deceptive advertising.⁵⁸ Other state and federal laws may apply to deceptive advertising practices.⁵⁹

a. Case Study: In January 2015, the Massachusetts Attorney General’s Office finalized a $3.5 million settlement with a large, national dental organization after alleging that the dental organization engaged in deceptive advertising and marketing practices, including charging patients for services it advertised as “free,” as well as advertising that it worked with “all” insurance carriers when it did not accept Medicaid.⁶⁰

4. Announcing an Unrecognized Specialty - Many state boards of dentistry have adopted regulations that prohibit the announcement of an unrecognized specialty.⁶¹ Announcement of an unrecognized specialty could subject a dentist to penalties or be deemed to be unprofessional conduct.

a. Case Study: In 2008, the New Jersey State Board of Dentistry penalized a general dentist after stating in business cards and a newspaper advertisement that he was a “Board Certified Implant Dentist”, a dental specialty not recognized by the Board’s regulations.⁶²